Planes, Trains and Trucks: Applying the Market Participant Exception to the Government as Proprietary Owner of Hubs of Commerce

Abstract

Once more, an aggrieved industry has sought the intervention of the Supreme Court to protect them from the City of Los Angeles. Once more, the Ninth Circuit has expansively read the ambit of a state’s authority to make marketplace choices and the presumption against preemption that protects such policies. This article takes the opportunity of this most recent cert petition challenging the requirement imposed by Los Angeles International Airport (LAX) that airport employers exact labor peace agreements with their workers to revisit the history of the market participant doctrine, which immunizes state proprietary action from (some) constitutional and statutory preemption, as well as its recent expansion beyond the Dormant Commerce Clause and labor law contexts. The presumption against preemption and the goal of even-handedness that underly the doctrine has fostered its expansion far beyond the traditional conception of a procurement and, this article argues, properly has come to include the consideration of non-pecuniary goals in the distribution of funds and leasing of space. While government institutions play an important role in determining access to markets, in the absence of the abuse of clearly unique tools such as criminal and civil sanction, creating distinctions amongst entities based on either size or function undermines the goals of the doctrine, and empowers private actors over the state.